An ongoing review of politics and culture

So, apparently the flower of the DC blogosphere were interrupted in the middle of a midnight group-dance at the Jefferson Memorial, and one of them was arrested, booked and released after about five hours.

Let’s agree for the sake of argument that the description and video of the event provided by the dancers represents a complete and unbiased account of what happened. Let’s also agree that a better cop would have made a better judgment call in this situation. Most likely, he would have asked this group what was going on, and once he learned what they were doing, would have said “Have fun”, and gotten on with protecting and serving. (Presuming, of course, the reaction of those asked was not “You have no legal basis for interrogating me, so I refuse to answer your question.”).

But what’s funny about the reaction of so many commentators is that they assume away the trade-offs that would be involved in expecting that such an attitude be flawlessly executed by cops. How would we go about having a world where a group can do this without any fear of interference by law enforcement? I think the key requirement would be fielding a police force consistently capable of distinguishing between “harmless and fun, if unusual, behavior” and “disruptive behavior that could plausibly be interpreted as legal or illegal, but is disconcerting and threatens to get worse”. One thing that might help somewhat is to hire smarter cops. But smart people are a finite resource, so this would probably cost more (that is, we would pay higher taxes). Plus, resources would be diverted from software engineering, poetry writing and CRM system implementations. It also probably wouldn’t be enough to solve the problem. We could train cops better, but once again that means higher taxes. It also seems to me that judgment is extremely inelastic to training, and is much more driven by personality and apprenticeship. So, again, it would probably help, but still wouldn’t solve the problem.

We could put in place stricter rules to govern police behavior in order to reduce the scope for judgment, and hire more internal affairs investigators to enforce compliance with these rules. No set of laws plus departmental regulations, however, can come close to laying out a cookbook to be followed precisely in all situations, and therefore some judgment and discretion are always required by cops. You’re therefore talking about changing the culture of a police department in order to have a world free for flash-mob dances, which is very expensive and has other implications as well. For example, it might very well make police less able or likely to interfere with a marginally more unruly group that then encourages other unruly groups to hang around the area that then leads to purse-snatching, fewer tourists, ongoing worsening of the crowd, more serious crimes and so on. On the other hand, you could argue that by changing the way they interact with citizens, cops could get more cooperation and therefore become more effective and so on. It isn’t a simple knob that we dial between freedom and order.

This is why the intuitive observation that the lack of perspective of the dancers is relevant: by trying to make the world perfectly safe for midnight dances at memorials, we may very well create worse oppression – by criminals or the state – elsewhere.

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disruptive behavior that could plausibly be interpreted as legal or illegal, but is disconcerting and threatens to get worse

The police cannot act when actions could “plausibly be interpreted as legal or illegal”; they are required to act in accordance with statute and in a way that does not interfere with the rights of citizens that have been delineated by law and precedent. Empowering police officers to respond when something is merely plausibly illegal amounts to nothing less than abandoning the notion of individual rights. Saying that the police have a right to act merely when they find something to be disconcerting, or when they believe behavior “threatens to get worse”, amounts to nothing less than abandoning any notion of due process or rights of the accused.

Presuming, of course, the reaction of those asked was not “You have no legal basis for interrogating me, so I refuse to answer your question.”

If their actions were not illegal, and did not amount to probable cause that they were doing something illegal or about to, the police officer in fact had no legal basis for interrogating them. What’s more, unless their refusal to speak specifically constituted probable cause that what they were doing was in fact illegal, refusing to answer those questions in no way incriminates them. Besides, it was the dancers who specifically opened a dialogue with the police officer about why they had been asked to disperse, and precisely because that dialogue was opened, the dancer was arrested. You don’t need to pose hypotheticals about would have happened, had the dancers attempted to talk things out. They did, and the officer not only failed to engage, he arrested one of them.

No set of laws plus departmental regulations, however, can come close to laying out a cookbook to be followed precisely in all situations, and therefore some judgment and discretion are always required by cops.

Indeed. That judgment and discretion is limited to the legal enforcement of laws as defined by statute, not a open-ended power to arrest based on “suspicion”, “maintaining order”, or “stopping bad stuff from happening.” In America, actions that are not specifically prohibited are permitted, not the other way around.

But smart people are a finite resource, so this would probably cost more (that is, we would pay higher taxes). Plus, resources would be diverted from software engineering, poetry writing and CRM system implementations.

As you know, I don’t often see the utility in trying to consider problems from a purely financial perspective. But I’ll concede that kind of analysis has use. However, I cannot fathom thinking that our basic rights— and the rights to expression and to assembly are among our most vital and elementary— should be debated in terms of how many resources they consume.

This is why the intuitive observation that the lack of perspective of the dancers is relevant: by trying to make the world perfectly safe for midnight dances at memorials, we may very well create worse oppression – by criminals or the state – elsewhere.

This is the hidden argument that bothers me the most. There is a disturbing kind of ad hominem here, that because these are young bloggers having a good time, because they are being quirky and self-conscious, because their actions are mainly artistic or (gasp) fun, they somehow have less rights that they would, were they making a more formal or solemn protest. The idea that because, to others, they were “just fooling around”, and thus shouldn’t be entitled to the same legal protections as everyone else, is antithetical to our system. It isn’t for the government or society to decide who’s opinion is sufficiently worthy or serious enough to protect. The right to free expression has no meaning if it is defended unequally or particularly, if the expression or the people expressing it has to meet some sort of exterior standard of seriousness or credibility. The fact that they were just some goofy kids having fun is absolutely immaterial to the question of whether or not they should be allowed to peacefully assemble and peacefully express. The relevant questions are, first, whether they were fairly treated by the park police, in accordance to legal statute and not in regards to vague questions of suspicion, unruliness or decorum. And second, if they were in fact guilty of a crime, whether that law is constitutionally defensible and does not unduly interfere with their protected rights to speech and assembly.

The police cannot act when actions could “plausibly be interpreted as legal or illegal”; they are required to act in accordance with statute and in a way that does not interfere with the rights of citizens that have been delineated by law and precedent.

What I was trying to communicate is that it is not always obvious whether a specific action under consideration violates a law or not.

If their actions were not illegal, and did not amount to probable cause that they were doing something illegal or about to, the police officer in fact had no legal basis for interrogating them. What’s more, unless their refusal to speak specifically constituted probable cause that what they were doing was in fact illegal, refusing to answer those questions in no way incriminates them. Besides, it was the dancers who specifically opened a dialogue with the police officer about why they had been asked to disperse, and precisely because that dialogue was opened, the dancer was arrested. You don’t need to pose hypotheticals about would have happened, had the dancers attempted to talk things out. They did, and the officer not only failed to engage, he arrested one of them.

The reason I think the hypothetical is relevant is that we don’t know how various of the dancers would have reacted had they been initially approached in a respectful manner. The only reason I put this comment in was to make clear that, exactly as you state, one can reasonably claim a yet higher standard for police behavior as demanded by the law, namely to have not interfered with the dancers, and if rebuffed when asking for information about what they were doing to have nonetheless still not interfered. To be clear, this is my (and, I think, your) understanding of the law.

Indeed. That judgment and discretion is limited to the legal enforcement of laws as defined by statute, not a open-ended power to arrest based on “suspicion”, “maintaining order”, or “stopping bad stuff from happening.” In America, actions that are not specifically prohibited are permitted, not the other way around.

But my point here is, again, that it is not always obvious when the law has been violated.

cannot fathom thinking that our basic rights— and the rights to expression and to assembly are among our most vital and elementary— should be debated in terms of how many resources they consume.

I do, as long as “being dispersed when dancing at the Jefferson Memorial” is defined as = “our most basic and vital rights”, and is considered in isolation from all of the other rights and goods of government that would be undermined by orienting our management of police forces to allow untrammeled expression of this one right.

In a perfect world, we could smart off to cops and tell donut jokes without fear of prejudice. We could walk in perfect safety in any neighborhood at any time of day. People would not judge us by our clothes. But there seems to be something awfully high schoolish about this whole thing.

Nobody expects police performance to be perfect – as you pointed out, people with the wisdom of Solomon and the patience of Job are in short supply. We can expect the police to try to get it right – in this case, that means releasing and apologizing to the person arrested and mentioning to the arresting officer that asking why is not against the law.

Freddie, your mental model of law enforcement seems incredibly narrow — police officers use discretion all the time. If they did not, a far larger share of the population would likely be in prison. “Ah, but far more should be in prison! And perhaps the prison population would be whiter and more female and thus less lopsidedly unrepresentative of the country as a whole!” Perhaps. But perhaps the exact opposite would be true. We’re all better off when considerable scope is given to the hidden law — some things are simply inappropriate, which is why we have many vaguely worded statutes that allow police officers to use their (not always flawless) judgment to intervene in unusual situations. To be sure, there is a danger here, as Jim notes — Bruce Schneier talks about “the war on the unexpected,” and then there is the ugly way police officers use and abuse prostitutes. But I suspect the mechanistic application of statute would make civilized society unworkable. Closing the gap between statute and reality is impossible. There will always be a place for norms and the subtle and not-so-subtle enforcement of norms, whether we like it or not.

As to the notion that some things are simply inappropriate, and the police should have the ability to arrest people for doing them even though there is no legal basis for doing so, I really have nothing to say that could be constructive. That idea is simply, completely antithetical to a free society, a system of laws, and individual liberty; so I think we’ll just have to agree to disagree on that one.

I do think, Reihan, that it’s naive to say that the police use their discretion only or primarily to arrest less people— and since we’re talking racial imbalances in criminality, I think many black men would agree with me. But there’s no way to no sure; that’s why it’s the hidden law.

Seems to me that there were two separate complaints about that incident, and your post really only addresses one (i.e. that the police broke up the dancing). My impression was that a lot of the outrage was due to the allegation that one of the dancers was roughly handled and arrested simply for asking why they were being dispersed. I’m not sure that arguments re the cost of raising the average ability/judgment of the police force apply in this second case; rather, it seems more a matter of training (and perhaps modifying the police culture) so that the mere act of questioning an officer’s actions isn’t taken as license to harass the questioner.

Though perhaps it’s the case that the enjoyment of exercising authority is a large enough component of the average officer’s total compensation that training them to use more discretion in this regard would require a higher average salary to make up the difference.

In non-internet life, we have different conversations with different tones. That’s why I advance an argument, but say: Here’s how I might be wrong, or Bruce Schneier, who is smarter than me, says I’m probably wrong, or here’s an egregious abuse of the hidden law. My intention is not to demolish my opponent, but to tentatively advance a set of ideas I think might be constructive. Obama, similarly, narrowcasts to different audiences to connect with different audiences — he’s not saying something he doesn’t believe, but he does shift his emphases. We all do. Or most of us do. So in a way I don’t even know what to do with rhetorical maximalism. I know I’m susceptible to it at times, usually when I have a space constraint. But anyway, just a thought.

I’m tempted to sympathize with this as I try not to be a troublemaker (offline, anyway ;).

But it occurs to me that overzealous cop behavior can, itself, be “disruptive behavior that could plausibly be interpreted as legal or illegal, but is disconcerting and threatens to get worse”.

I object to what is going on here even as greater and clearer abuses of police power exist elsewhere, just as the government enforces laws against traffic law and copyright violations even as greater crimes are being performed elsewhere. (In reality, I haven’t read enough of the back story to know whether I actually object, but let’s pretend I do for the sake of argument.)

1) I agree with Freddie that if the cops have no legal basis for an arrest, they shouldn’t make arrests.

2) That said, I think the real trade off isn’t hiring smarter cops, it’s the level at which you want cops to intervene in situations that have the potential to get worse. These kids were pretty harmless, but another bunch may be 15 minutes away from a vandalism spree, or from wilding a bunch of tourists. I would set the bar on “talk to the kids, then leave them alone,” but I might change my mind if DC experienced a couple mobs gone wrong.

3) Is there a reverse-profiling component? I assume if the police saw 100 kids who might be gang members congregating anywhere at midnight, they would take some steps to disperse them. (I also assume a libertarian would say that the cops shouldn’t). Giving them all possible credit, maybe the police are just trying to apply that “hidden law” impartially.

3) Yes! Anti-loitering laws have been a key weapon against gang violence. I’d welcome any arguments to the effect that this is an ineffective weapon. It depends on discretion, which tends to be abused in the case of young dark-skinned men.

1) Hence the legal basis is nebulous, hazy, vague. The District’s police force is hampered by a lot of absurd, absurd rules, e.g., there’s no law against breaking and entering as such. If someone randomly walks into your home or place of business and engages in disruptive behavior but doesn’t actually steal anything, they must first be “informed” by a police officer that they are not allowed on the premises. Only when they return will they be arrested. I assume the Park Police have a broader scope to be sure large congregations of kids don’t do any damage.

Who the heck knows. I feel bad for the person they arrested, and also for the cop. It’s actually kind of scary to be a police officer, particularly in a situation where you are vastly outnumbered. It takes a cool, dispassionate mind. Sometimes you overreact.

I think J. Mann and Reihan are getting close to something relevant here: the cop’s real, unspoken answer to “why are you dispersing us” question might have been, “because the next time some black kids do the same thing somewhere else, I’ll for damn sure be expected to disperse them.” I’m not saying I think either hypothetical crowd should be arrested, but that’s one thing that was certainly on the officer’s mind.

“I think the key requirement would be fielding a police force consistently capable of distinguishing between “harmless and fun, if unusual, behavior” and “disruptive behavior that could plausibly be interpreted as legal or illegal, but is disconcerting and threatens to get worse”. One thing that might help somewhat is to hire smarter cops. But smart people are a finite resource, so this would probably cost more (that is, we would pay higher taxes). Plus, resources would be diverted from software engineering, poetry writing and CRM system implementations.”

Thanks for making my day, Jim. You buried, in your long post, this wonderful little nugget – a parody of a policy geek crudely applying a trade off analysis to gritty street stuff that he knows nothing about. I especially like the line about how increasing the street-smart quotient of the police force would entail a decrease in the writers of computer code and poetry. Who doesn’t lose sleep over the great poems and computer games that will go unwritten because of increased hiring by a police force. And who doesn’t savor the works of our best poets and computer software writers without a tinge of sadness at the diversion of their street savy and head knocking skills from law enforcement. The harsh reality of the poet-police officer trade off has definitely been overlooked by your peers. Well done!

Thanks for the comment. I meant that about petry writing, software, etc. ironically. As always, when irony doesn’t come off, it’s the fault of the writer and not the reader.

What I was trying to say with the post, which my guess from your comment you would find a lot more acceptable, was that we don’t live in a perfect world, and demanding that the world be made pefectly trouble-free for people who want to flash-mob dance at the Jefferson Memorial at midnight would have some costs to it.

OK but consider the actual content of what I’m saying, Reihan— if cops can arrest you based merely on intuitions, feelings or whim, what meaning do rights have at all? How could you live your life if a cop can come into your house, say “I have a funny feeling about this”, and drag you away? (Is that really a disqualifying question?)